Tai Fuk v. The Queen

Case No.CACC 696/1976

Court

Court of Appeal

Date03 Nov 1976

Judge—

Case Document

100%

CACC000696/1976

IN THE COURT OF APPEAL	1976 No. 696
	(Criminal)

BETWEEN:
	TAI FUK	Appellant
	and
	THE QUEEN	Respondent

Coram: Briggs, C.J. Pickering, J.A. McMullin, J.

Date of Judgment: 3rd November, 1976

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JUDGMENT

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1. The appellant was found guilty of an offence under section 10(1)(b) of the Prevention of Bribery Ordinance. He has appealed against that conviction.

2. The statement and particulars of the offence of which the appellant was found guilty read as follows:-

"	Being a Crown Servant was in control of pecuniary resources of property disproportionate to his then present or past official emoluments.
	Contrary to Section 10(1)(b) Prevention of Bribery Ordinance, Cap. 201, Laws of Hong Kong.
	TAI Fuk, being a Crown Servant, namely a Detective Station Sergeant of the Royal Hong Kong Police Force, was on the 28th day of July 1971 in control of pecuniary resources of property disproportionate to his then present or past official emoluments."

3. The case for the prosecution was that the appellant was a corrupt police officer who acquired corrupt money which he applied in purchasing land and property in the name of three women. These women were his wife and his two mistresses.

4. The total official emoluments of the appellant up to the date mentioned in the particulars of the charge was about $150,000. It was not in dispute that on the same date the three women legally owned various properties which had cost about $1,140,000. In addition, one of the three women had spent over another one million dollars in the erection of a block of flats. Finally, the bank accounts of the three women showed balances totalling over $500,000.

5. There was evidence to show that the appellant was in receipt of corrupt money which though not very strong, was accepted by the trial judge as being one probable source of the money and property found in the possession of the three women.

6. The prosecution relied on the presumption contained in section 10(2) of the Ordinance. This reads as follows:-

"10. (2) Where a court is satisfied in proceedings for an offence under subsection (1)(b) that having regard to the closeness of his relationship to the accused and to other circumstances, there is reason to believe that any person was holding pecuniary resources or property in trust for or otherwise on behalf of the accused or acquired such resources or property as a gift from the accused, such resources or property shall, until the contrary is proved, be presumed to have been in the control of the accused."

7. The appellant gave evidence on his own behalf and called the three women as witnesses. The defence was a denial that the appellant was in control of the property and money and an explanation of how she came to be possessed of the property and money was given by each of the women.

8. The trial judge rejected the evidence called on behalf of the appellant and found by inference that the appellant was in control of the property and money. Accordingly, he convicted the appellant as charged.

9. The principal ground of appeal was that the trial judge was wrong to draw the inference he did and that the prosecution had not proved that the appellant was in control of the property and money.

10. It is true that there was very little direct evidence to convict the appellant with the control of the property and money. But we think that by virtue of section 10(2) of the Ordinance and in view of the close relationship of the three women with the appellant that the trial judge was justified in drawing the inference he did. We therefore dismiss the appeal against conviction.

11. The appellant was sentenced to six years' imprisonment and a fine of $100,000 or one year's imprisonment in default. In addition, he was ordered to pay to the Crown the sum of $5,162,437.94. He was also ordered to pay the costs of the prosecution. He has appealed against this sentence.

12. Various cases of a similar nature were referred to the court and it would appear that the sentence of six years' imprisonment is an unduly high sentence for this offence. We therefore reduced the sentence of six years to one of four years. We considered this was a proper case for the fine of $100,000 to stand so we did not interfere with that part of the sentence.

13. The trial judge relied on section 12(2) of the Prevention of Bribery Ordinance in making his order that the appellant should pay to the Crown the value of the property. The trial judge ordered that the property in question should be valued and that was done and the figure of $5,162,437.94 represents the value of those properties at the time they were valued, namely at the time of the trial, plus the various sums of money found in the bank accounts of the three women concerned.

14. We think that the trial judge was right in ordering a valuation to be made of these properties and we think that he was right to take as the value of the property for the purposes of section 12(2) the value that the property had at the time of the trial. There was evidence that other properties had been in the possession of the three women and had been sold before the trial. The trial judge took as the value of those properties the amount of money received from the sale of those properties. Again, we think he was right to adopt that method of calculation.

15. In the circumstances, we do not interfere with this part of the order of the trial judge. In the event, therefore, the appeal against sentence is allowed to the extent that the sentence of six years' imprisonment is reduced to four years and to that extent only.

	(Geoffrey Briggs)
	President.

Representation:

Peter C.K. Chan (H.M. So & Co.) for appellant.

Gall for crown.